Saturday, July 4, 2009

In a 38 page dissent, Justice Ruth Bader Ginsburg took issue with the majority decision in Ricci vs. DeStefano, the case in which the City of New Haven, Connecticut refused to promote white and Latino firefighters who scored high enough on the promotional exam because no blacks who took the test were among the highest scoring.

New Haven's reason for throwing out the test seemed to be: If no blacks who took this test scored high enough for promotion, then the test must be at fault. Ginsburg appears to share that view.

To my mind, New Haven should have the burden of proof: Show me a question or series of questions on the exam which are irrelevant to being a fire captain or lieutenant; and show me how those questions would be inherently more difficult for black firefighters than they would be for whites or Latinos.

New Haven did not bother to prove its case. Instead, the city threw out the test results on the basis of race and race alone. Imagine, for example, if all of those who scored highest had been black. Would New Haven have been guilty of racism for throwing out the test with no evidence that the test itself was at fault? Obviously, the city would have. And just as obviously, New Haven was guilty of racism by not promoting its highest scoring firefighters because those candidates for promotion had the wrong skin color.

Justice Ginsburg writes:

The white firefighters who scored high on New Haven’s promotional exams understandably attract this Court’s sympathy. But they had no vested right to promotion.

A vested right is a legal term for an absolute right. "When a retirement plan is fully vested, the employee has an absolute right to the entire amount of money in the account."

Before the rules were set for promotion in the NHFD, no one had an absolute right to be promoted. However, after the rules were set, after promotions were deemed necessary for that department and after the exams were given (and no one proved that the exams were objectively biased or unfair), then those who scored the highest in the promotion process did have a vested right to be promoted. Ginsburg's argument is unfounded.

Ginsburg's next contention:

... (the Court) ignores substantial evidence of multiple flaws in the tests New Haven used. The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes.

Multiple flaws? This is a strange argument to make in dissent, because no one -- not the City of New Haven or any other party to this case -- ever took a critical look at the actual questions on this exam. The determination of its "flaws" was solely on the basis of insufficiently high scores by the black firefighters who took this test in 2003. Does Ginsburg in her 38 page argument give one example of a flawed question? No.

Her justification for saying the test was flawed is because "the City simply adhered to the testing regime outlined in its two-decades-old contract with the local firefighters’ union: a written exam, which would account for 60 percent of an applicant’s total score, and an oral exam, which would account for the remaining 40 percent. ... The City never asked whether alternative methods might better measure the qualities of a successful fire officer, including leadership skills and command presence."

It's one thing to argue that New Haven could find better candidates for promotion by changing its standards of promotion. (Ginsburg did not attempt to prove that alternative methods find better fire department officers. So we really don't know if other departments which use other methods objectively get better results from different standards.) But it is something entirely different to contend that because the individual black firefighters who took this exam under the process in place failed to score high enough for promotion the test and/or the process is flawed or racist. Much more likely the results suggest that those individuals who did not score high enough were either not smart enough or did not study hard enough, neither of which has anything to do with one's ancestral heritage.

That said, I don't discount the possibility that New Haven (and other cities) could be better off by changing their promotional processes. If objectively better people are promoted using a different weight for the tests, then the next time officer positions open up, use a better gauge. However, don't equate better with racial statistics. That is racism. All individuals of all races always deserve to be judged as individuals and not as representatives of a larger group.

The idea that the 2003 test should be thrown out because there might be a better test or process for promotion is unfair to those who scored highest on that 2003 test. First, prove that some other test is objectively better. And second, once you have the proof of a better test or procedure, put that in place from this point forward.

Ginsburg says that other cities have better tests, because those tests "have yielded less racially skewed outcomes." In other words, Ginsburg does not believe in equality of opportunity, she believes in equality of results. The only way we would ever know if the other tests are truly "better" would be if the performance of those who are promoted under one examination is markedly higher (all else held roughly equal) than those promoted under the other test. Just because some cities use a test in which the black applicants in those cities scored high enough for promotion does not make those exams better.

It's shocking to me that we have justices on the Supreme Court of the United States whose judgment is as flawed as Ginsburg's is here, so far.

The Court’s recitation of the facts leaves out important parts of the story. Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow.

This clearly gets to the motive of Justice Ginsburg's politics, which obviously drives her jurisprudence. She wants the Supreme Court to allow discrimination against whites and a Latino, in this case, because in the past blacks were discriminated against. However, that is irrelevant and unfair to consider in this particular case. Why? Two reasons. First, no one showed that in this case the firefighters who won promotions were promoted for any reason other than merit. No one showed that those who were not promoted were denied because of their race. The only reason New Haven blocked the promotions of those who scored highest on the test was because they were not of the correct race. Second, the firefighters who would have been promoted did not discriminate against blacks or any other minorities; and therefore it is unfair to deny them promotions because some blacks years ago were discriminated against by other whites who have nothing to do with this case.

The next part of Justice Ginsburg's argument deals with "disparate impact." She gives the statistics for the pass rate for each race on the test; and says because collectively non-whites did not do nearly as well as whites on this test, the test itself is a violation of Title VII's disparate impact provision.

Disparate impact was born in the Griggs case of 1971. It says:

A person claiming that an employment standard has a disparate impact based on race, color, sex, national origin, or religion must demonstrate factually a disparity of legal consequence before the law will require an employer to demonstrate business necessity. A person who has established such a disparity is said to have established a prima facie case of discrimination. In evaluating whether an employment standard has a disparate impact, a mathematical comparison must be made of a particular group's success rate in regard to the standard versus the success rate of other groups.

Griggs is a flawed decision. If Ricci becomes the new standard, then the "mathematical comparison" clause of Griggs is effectively dead.

The idea that it is okay to discriminate against an individual of one race because some other "group's success rate" failed to match up in "a mathematical comparison" is racist. No test or process should ever be judged on the basis of "a group's success rate." A group is composed of individuals and each individual has unique reasons why he did well or poorly on an exam. Employment tests instead should be judged on whether the questions asked are germane and reasonable and if those who get jobs based on the test prove themselves competent in their jobs.

Justice Ginsburg goes on at great length discussing the 39 year history of disparate impact cases. She eloquently argues:

Observance of Title VII’s disparate-impact provision ... calls for no racial preference, absolute or otherwise. The very purpose of the provision is to ensure that individuals are hired and promoted based on qualifications manifestly necessary to successful performance of the job in question, qualifications that do not screen out members of any race.

To me, the question here is about burden of proof. The examination process for promotion in New Haven may well be unfair, inadequate and not the best for finding the best candidates for promotion. But just because one racial group performs less well than some other racial group on a test does not prove the test is racially biased. Thus, the burden of proof for discrimination should be on those who allege that the test was racially biased by design or by accident. Only when that is proved should a testing procedure be thrown out. And just because a different test results in having members of all racial groups in question pass the test in proportion to their groups does not mean that the test is racially unbiased or the best possible test. As such, it makes no sense to measure group outcomes and then proceed to argue that they prove racial bias. Instead, show me how the test itself is biased against a racial group or how a better test, regardless of race, would objectively find better candidates for promotion and I would throw out the old test.

If an employer reasonably concludes that an exam fails to identify the most qualified individuals and needlessly shuts out a segment of the applicant pool, Title VII surely does not compel the employer to hire or promote based on the test, however unreliable it may be.

Ginsburg's reasoning is again flawed here. Why? Because New Haven decided that its test process "needlessly shuts out a segment of the applicant pool" on the basis of the races of those who did well and those who did not do as well. This gets back to burden of proof. The test results only should have been thrown out if New Haven could show that the questions used were not germane -- they did not show that -- or that some other process would objectively found better candidates for promotion -- and the city did not do that either. Therefore, those who scored highest on this exam should have been promoted.

In choosing to use written and oral exams with a 60/40 weighting, the City simply adhered to the union’s preference and apparently gave no consideration to whether the weighting was likely to identify the most qualified fire-officer candidates.

If that weighting objectively fails "to identify the most qualified fire-officer candidates," the burden of proof should be on those who make that claim. Because the test results were thrown out before anyone could prove that claim, the claim itself remains unproven.

Courts have long criticized written firefighter promotion exams for being “more probative of the test-taker’s ability to recall what a particular text stated on a given topic than of his firefighting or supervisory knowledge and abilities.”

This may be true. However, it does not explain why black firefighters did not score as highly as whites on the New Haven exam, unless Ginsburg is arguing that blacks cannot "recall what a particular text stated on a given topic" as well as whites. If that is her argument, that is patently racist on her part.

Ginsburg ends her argument attacking the arguments of Justice Alito in his majority opinion. She makes a better case that some of Alito's arguments were flawed than she does that his conclusion was flawed.